On Petition for Review of a Decision of the District of Columbia Office of Administrative Hearings (ESP-112126-08)
The opinion of the court was delivered by: Reid, Associate Judge:
Before REID and FISHER, Associate Judges, and FERREN, Senior Judge.
Petitioner Taj Gilmore asks us to review the decision of the District of Columbia Office of Administrative Hearings ("OAH") upholding the Department of Employment Services' ("DOES") determination that he was disqualified from receiving unemployment insurance benefits. We reverse and remand for the reasons stated below.
The record shows that Mr. Gilmore was employed as a bus driver with Atlantic Services Group ("Atlantic") from approximately January 2008 through June or July of 2008. In June of 2008, he was incarcerated for a period of twelve days. Eventually, he applied for unemployment benefits. On December 3, 2008, DOES issued a notice to Mr. Gilmore denying his request for unemployment benefits. DOES disqualified Mr. Gilmore from receiving benefits based on the determination that he was separated from his job with Atlantic "due to 'no call/no show' job abandonment" after he "left [Atlantic] voluntarily without good cause connected with the work." Mr. Gilmore appealed the determination by filing a request for a hearing with OAH.
Three witnesses testified at Mr. Gilmore's February 6, 2009 hearing: (1) Reggie Tillman, Mr. Gilmore's immediate supervisor, (2) Ayanna Howard, Mr. Gilmore's fianceee, and (3) Mr. Gilmore himself. Atlantic was represented by its Human Resources Director Chris Mulden and Mr. Gilmore represented himself. No documents were admitted into evidence. The following facts were elicited at the hearing.
Mr. Tillman was the only witness to testify on behalf of Atlantic. He asserted that Mr. Gilmore had requested time off for an eye injury, was out for that day,*fn1 and did not return. According to Mr. Tillman, at some point, Atlantic submitted "a job abandonment letter to [Mr. Gilmore]." The employer did not seek to admit the letter into evidence, and the details of the letter were not provided. Mr. Tillman was aware that a friend of Mr. Gilmore, presumably Ms. Howard, informed an Atlantic bus driver that Mr. Gilmore was incarcerated. Mr. Tillman asked the driver to tell Mr. Gilmore's friend to call him so that he could "have it confirmed that [Mr. Gilmore] is incarcerated" and "do what we have to do as far as . . . holding his job[.]" According to Mr. Tillman, Mr. Gilmore "was a pretty good worker, and if he would have called like a month later" and requested to have his job back, Mr. Tillman "probably would have g[iven] it to him." However, Mr. Tillman testified that after Mr. Gilmore requested to have time off for his eye injury "he just didn't show up again" and Mr. Gilmore "never heard anything else from him."*fn2
Atlantic's policy for paid time off ("PTO") was not admitted into evidence. Mr. Tillman testified that drivers requesting time off were required to complete a PTO form and provide about a week's notice or "give [Mr. Gilmore] enough time to cover that route." In emergency situations, however, Mr. Tillman "overlook[ed] the procedures" and gave the driver the day off as long as the route could be covered by another driver Mr. Tillman asserted that if Atlantic did not hear from the driver for "three or four days," that was considered "job abandonment." Yet he also testified that he did not know what the procedure was for job abandonment, but he guessed that it meant that the person was fired. Mr. Tillman's discussion with the Administrative Law Judge ("ALJ") regarding Mr. Gilmore's separation from Atlantic occurred as follows:
Q What was the cause for [Mr. Gilmore's] separation from employment?
A: Well, we -- situations like this, we don't hear from somebody, [for] three or four days, its job abandonment. You know, it wasn't nothing he had done --
Q: So did Employer fire Mr. Gilmore?
A: I don't know what the procedure is for job ...